WOLA Report: The Zero Tolerance Policy

An Impossible and Inhumane Approach Toward Asylum-Seekers at the Border

On April 6, 2018, Attorney General Jeff Sessions notified all U.S. attorneys along the U.S.-Mexico border of a new “zero tolerance” policy toward undocumented migrants.[1] Henceforth, the Department would seek to prosecute, in the federal criminal justice system, everyone caught crossing the U.S. border improperly. On April 23, an internal Homeland Security Department memo obtained by the Washington Post called for the referral for prosecution of “100 percent” of adults apprehended at the border, “including those initially arriving or apprehended with minors,” and including those expressing fear of returning to their home countries.[2] As parents would be sent to federal prison facilities, the policy would require that their children be separated from them.

Like most countries, the United States makes it illegal to cross a border into its territory “improperly,” without undergoing inspection from government officials, usually at an official border crossing. Sections 1325 and 1326 of Title 8, U.S. Code, date back at least to 1952. They call for fines and time in federal prison for anyone who crosses the border improperly, whether crossing for the first time (1325) or subsequent times (1326).[3] Legal experts and human rights advocates affirm that the U.S. government, a signatory to the Protocol Relating to the Status of Refugees of the 1951 Refugee Convention, is violating U.S. treaty obligations by criminally prosecuting those who cross “improperly” with the intent of petitioning a U.S. authority for protection.[4][5] Article 31 of that Convention quite clearly prohibits slapping protection-seeking migrants with “penalties, on account of their illegal entry or presence,” as long as “they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”[6]

In fact, all past U.S. administrations, even the Obama administration, have reserved the right to impose “penalties” for unlawful entry and prosecuted a small number of asylum seekers.[7] But only the Trump administration has ever tried to do so massively.

But for the most part, criminally punishing border-crossers has been unworkable. There are logistical, budgetary, humanitarian, and legal reasons why no previous administration has attempted to implement the “improper entry” statute to the fullest. In 2000, the year in which Border Patrol apprehended a record 1.68 million migrants, prosecuting everyone would have multiplied the federal prison population several times.[8] (Today, that population is 183,700 inmates, plus about 80,000 held by U.S. Marshals throughout the year.)[9]

Since 2005, though, the Bush, Obama, and Trump administrations have prosecuted a sizeable portion of border-crossers for unlawful entry under “Operation Streamline,” an initiative that sends tens of thousands through federal criminal courts, dozens at a time, each year. Until now, Streamline—which is very active in Texas and Arizona and now getting underway in California—very rarely prosecuted parents traveling with their children or asylum-seekers for improper entry. With zero tolerance, the Trump administration’s goal is now to “streamline” everyone.

Clogging Federal Courts and Prisons

The experience of zero tolerance’s first two months has revealed it to be cruel, a drain on resources, and unlikely to deter future migrants. Federal courts and prisons have already run up against serious and foreseeable capacity issues. The zero-tolerance push has brought border-area federal courts to capacity, or beyond capacity. There aren’t enough judges, prosecutors, defenders, or holding space. Dockets are overflowing, even though most cases just end up in “time served” sentences.

Border Patrol divides the U.S.-Mexico border into nine sectors. The Rio Grande Valley sector, at the southernmost point of Texas, sees the most improper border-crossers right now. There, zero tolerance quickly increased daily Streamline prosecutions from 20-30 per day to as high as 150 per day.[10] Between March and May, the number of new cases filed on federal courts’ magistrate and petty offense dockets shot up by 45 percent in Austin, 63 percent in San Antonio, 112 percent in Laredo, 156 percent in McAllen, 385 percent in Brownsville, and 477 percent in Corpus Christi.[11] “The numbers are just staggering,” a McAllen public defender told USA Today. “I don’t know how much longer we’re going to be able to keep up with this flow.”[12]

Courts in Tucson have increased prosecutions to 75 per day, which appears to be their maximum capacity.[13] The city has not seen any of the 35 new immigration prosecutors and 18 immigration judges whom Sessions ordered to border-area courts.[14] “Prosecutors and judges have orders to do more, but no resources to do more with,” a Tucson public defender told WOLA. “The order is ‘no dark courtrooms’: they have to use all space all the time.”[15] In California, Reuben C. Cahn, the executive director of Federal Defenders of San Diego, wrote in a letter to that city’s chief federal judge, “The court has already begun to reshape itself to accommodate the increase in prosecutions, and these accommodations serve to diminish both the court and the constitutional protections accorded the accused.” As a result, “providing meaningful representation becomes all but impossible.”[16]

Swamping courts with misdemeanor improper entry cases reduces their bandwidth for dealing with more serious federal crimes, like drug trafficking. “It means we don’t have the time that we need to handle our felony cases,” Marjorie Meyers, federal public defender for the Southern District of Texas, told the Houston Chronicle.[17] In San Diego, the number-one sector for heroin, fentanyl, and methamphetamine smuggling, USA Today found early evidence that border authorities are sending more felony drug-smuggling cases to California state courts, and fewer to federal courts, because of the additional burden immigration cases are adding to federal jurisdictions.[18]

The courts’ inability to deal with the onslaught means that true “zero tolerance” remains far off. In the Rio Grande Valley, Border Patrol Sector Chief Manuel Padilla told the Washington Post that even the intensified level of prosecutions still represented just 40 percent of border crossers who could be prosecuted.[19] In Yuma and Tucson, short-term shelters that take in families released from Immigration and Customs Enforcement (ICE) custody pending an asylum process told WOLA that, as was the case before zero tolerance, ICE continues to seek placement for more families than the shelters can hold. In a June 21 White House Situation Room meeting, the New York Times reported, Customs and Border Protection (CBP) officials said that they have referred fewer migrants for prosecution because of “the number of prosecutors and judges needed to handle the proceedings, and the lack of space available to detain families while the cases go forward.”[20]

When prosecutions do happen, improper crossers are most likely to be sentenced to “time served”—the time they already spent in government custody—or probation, and a US$10 court fee. USA Today looked at 2,598 written judgments for border-crossing cases issued between mid-May and mid-June, and found 69 percent ended up with “time served” sentences and another 13 percent with probation. “In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted.”[21]

As has been reported by Human Rights First, in the case of asylum seekers, rather than sending them to a credible fear interview or immigration courts, CBP is referring them for criminal prosecution. Once in court, even if an asylum seeker or their lawyer tries to raise their asylum concerns, judges frequently respond that they lack authority for immigration matters and that the person needs to first serve their prison sentence. When agreeing to plea guilty for illegal entry, some migrants even sign waivers that force them to give up their claim for asylum.[22]

Those who end up getting sentenced under zero tolerance, which includes repeat offenders often jailed for 30 to 75 days, are rapidly swelling the federal prison population.[23] The El Paso Times reported that the new policy could be contributing to a 30 percent increase in the number of federal inmates in that city’s county jail, which has a contract with U.S. Marshals to provide space for federal inmates.[24]

Beyond parent-child separation, discussed at length in a subsequent report, time in federal prison creates other hardships for migrants and asylum-seekers. WOLA spoke to two tearful Mexican women who had just been deported to San Luis Rio Colorado, Sonora after serving 30-day terms. Both had originally crossed the border through Mexicali, 50 miles away, and had been arrested with their husbands. Neither had any idea where her husband now was, or had a way to contact him. Both had their identification documents, money, and mobile phones taken from them while in custody, and not returned. CBP will hold a migrant’s belongings up to 30 days after apprehension, and the local repatriation arrangements between the U.S. and Mexico require agencies to take all feasible steps to return belongings before detained migrants are repatriated.[25] However, as migrants are often transferred to different agencies, and particularly if they are prosecuted and are in the custody of the U.S. Marshals, there is a greater possibility that a person’s belongings will never be returned.[26]

No Evidence of Deterrence

Trump administration officials have frequently gone on record claiming that the zero tolerance policy, including separating parents and children, might dissuade other migrants from crossing improperly, or even from attempting to come to the United States. “It could be a tough deterrent,” White House Chief of Staff John Kelly told NPR in May.[27] “There is a straight cause-and-effect with this,” an unnamed Homeland Security official told reporters at a June 15 briefing. “The number of [unaccompanied minors] and families has grown dramatically over the last few years because of not prosecuting family members. It’s a clear line—cause and effect.”[28] Added Rio Grande Valley Border Patrol Sector Chief Padilla, “When you exempt a group of people from the law…that creates a draw. That creates the trends right here.”[29]

The numbers, however, don’t show a deterrent effect. Migrants, including thousands of asylum-seekers, keep arriving at and between the ports of entry, even at a time when zero tolerance and resulting family separations were dominating world headlines. In Arizona, authorities and advocates noticed an apparent drop in new migrants during the first half of June, compared to May, though there was some recovery later in the month.

By the end of the month, CBP data showed an 11 percent May-to-June increase in arrivals of family members in Arizona’s two sectors. This was offset, though, by a 40 percent drop in arrivals of unaccompanied children, for an overall decline of 18 percent fewer family and child migrant arrivals in Arizona. This tracks a border-wide trend of virtually unchanged family-member arrivals from May (9,491) to June (9,447), along with a 20 percent drop in unaccompanied children, for an overall 8 percent drop in children and families.[30][31]

A statement from the Homeland Security Department credited “the implementation of the Administration’s zero-tolerance policy” for this decline.[32] But in fact, a May-to-June drop is normal. Border Patrol almost always measures fewer migrant apprehensions in June compared to May. It is scorchingly, dangerously hot in the arid deserts along the southwest border in June, and fewer migrants attempt the journey.

Counting all migrants—not just children and families—between 2000 and 2017, the average monthly drop from Mays to Junes at the U.S.-Mexico border was 21.3 percent fewer migrant apprehensions. That’s 5.9 percentage points steeper than June 2018’s 15.4 percent decrease in all migrants. That indicates no deterrent effect at all from zero tolerance.

Focusing just on children and families, in the five prior years for which we have border-wide data (2013 to 2017), the number of apprehended children and family-unit members actually increased by an average of 8.3 percent from Mays to Junes. In June 2018, though, children and families decreased by 8.2 percent. That decrease is virtually identical to the drop measured between May and June 2016, the last year of the Obama administration.

This points to only a very modest potential deterrent effect. Had 2018 matched the 2013-2017 average increase, Border Patrol would have apprehended 17,191 children and family members in June 2018. Instead, it apprehended 14,564. The difference is 2,627 children and family members, or 15 percent, fewer. So perhaps that small number could be about how many children and family members were “deterred.” (And as noted above, the reduction was mostly unaccompanied children: family members remained unchanged from May to June.)

Studies of past “low-tolerance” efforts, like Streamline, also point to little deterrence. A June 2018 study by the Vera Institute of Justice found “no evidence to suggest that Operation Streamline had any impact on migrants’ decisions to enter the United States.”[33] The Homeland Security Department Inspector-General’s office also cast doubt on claims that Streamline reduced recidivism among border-crossers, as recidivism rates appeared to remain similar in the long term.[34]

WOLA expects the deterrent effect of zero tolerance to be minimal, because the push factors driving people out of Central America remain strong. Migrants who fear for their lives see no other choice, and “zero tolerance” doesn’t change their calculation. “It’s a life or death decision for people,” as New Mexico’s chief federal public defender, Stephen McCue, told USA Today. “No one brings their kids up here just for the heck of it. They come because they have to.”[35]

The “push factors” driving migration from Central America and Mexico remain largely unchanged. Over the last decade, these factors have sparked a dramatic increase in Central Americans seeking out asylum world-wide. According to data from the U.N. High Commissioner for Refugees, between 2011 and 2017 the amount of asylum seekers from Northern Triangle countries seeking out asylum in the United States increased by 1,089 percent.[36] Other neighboring countries like Costa Rica, Panama and Mexico also saw a similar spike in requests. Mexico saw the highest spike, with 1,971 percent more Northern Triangle migrants seeking out asylum in 2017 versus 2011.

The increases in petitions for asylum align with the exodus of tens of thousands of families and children who began fleeing the Northern Triangle in 2013 due to insecurity and violence. Overall indices of violence have improved since then, but still vary drastically by geographic location within each country. In the Northern Triangle, homicide rates dropped after 2015 from “record high” to “extremely high,” while Mexico has never recorded levels of violent crime as high as today’s. Central American asylum-seekers say they are still fleeing extortion, gang violence or forced recruitment, domestic abuse, gender violence, or targeting for collaboration with police. Mexican asylum-seekers are fleeing for similar reasons, including the wide reach of organized criminal groups in Mexico and the collusion between many public officials and these groups. Across the board, we heard from asylum seekers the perception that their own government is unable or unwilling to protect them, or that it is part of the problem.

About half of children and families arriving from Central America’s Northern Triangle (El Salvador, Guatemala, and Honduras) come from Guatemala, which has a larger population than the other two countries combined. In Arizona, the vast majority of Central American asylum-seekers, about 88 percent so far this year in Yuma and a similar amount in Tucson, are Guatemalan.[37] Shelters WOLA visited in Yuma and Tucson said that most families they received came from Guatemala.[38] This probably owes to smuggling patterns: there appears to be a well-established smuggling network originating in Guatemala and ending in Arizona.[39]

This network appears to be favoring the border’s Yuma and El Paso sectors. Apprehension numbers of children and family migrants are lower in Tucson, a traditionally much busier sector flanked on the east and west by Yuma and El Paso. This is a mysterious pattern that none could explain, although one Nogales service-provider shared a rumor that, in some parts of Mexico across from the Tucson sector, narcotraffickers are trying to discourage Central American migrants from crossing, and kidnapping a number of them.[40]

While many Guatemalan asylum-seekers come from violent urban neighborhoods, a surprising number are coming from the country’s rural, indigenous-majority highlands. This is the poorest part of the country, hit hard by the 1960-1996 civil war, and it has been widely assumed that migration from the highlands was driven by economics, not insecurity.[41] Today, though, shelter personnel and asylum lawyers say that violence is a greater factor in rural areas as well.

The perpetrators in Guatemala may not be big gangs like MS-13 as much as local criminals, often tied to narcotraffickers, who operate with the acquiescence of local government and security forces. Indigenous Guatemalans fleeing the highlands, many of whom speak Spanish as a second language, tell of “ladinos” (non-indigenous Guatemalans) who extort any small business beyond their ability to pay, and of an increasing number of forced displacements either to steal landholdings or to consolidate control over cocaine and poppy trafficking routes.[42] 85 to 90 percent of all cocaine consumed in the United States passes through Mexico and Central America on its way from the Andes; while a minority of that amount is transshipped directly to Mexico, the rest passes at some point through Guatemala, and often its highlands.[43]

Less than 10 percent of children and families coming to Arizona are Mexican. Most come from states along the Pacific coast, especially Guerrero and Michoacán, that have been hit very hard by organized crime-related violence. At the Nogales port of entry, WOLA spoke to two mothers from Guerrero, who had fled with their children two weeks earlier. Armed groups had killed one woman’s sister-in-law. One group had cut off electricity to their town and was blocking repair crews. The community is confined, schools are closed, basic goods are running scarce, and the local armed groups appear to have been specifically targeting women and children. One of the women expressed concerns about the possible forced recruitment of her 14 year-old son by a criminal organization. On the morning they fled, a shootout was happening in the middle of town.[44][45]

With these persistent “root causes” and push factors, then, even if zero tolerance brings a short-term drop in migration, it is very unlikely to be sustained. “I’ve seen this movie before,” Jeh Johnson, the secretary of Homeland Security between 2013 and 2017, told the New York Times. “I feel like what we are doing now, with the zero tolerance policy and separating parents and children for the purpose of deterrence, is banging our heads against the wall.… [I]t’s always going to have at best a short-term reaction.”[46]

Zero tolerance has caused an increase in asylum-seekers reporting to the 45 land ports of entry along the U.S.-Mexico border, where it is still legal to petition CBP officers for asylum. (We discuss the situation at ports of entry in a subsequent report.) Even after two months of zero tolerance, however, most asylum-seekers continue to cross between the ports of entry.

In Arizona, despite the new high probability of arrest, asylum-seeking families crossing between ports of entry still tend to seek out Border Patrol agents. In the heavily fenced-off Yuma and Tucson sectors, this often means climbing the border fence. In Yuma, this tends to happen in areas where the fence is still relatively short, made of metal sheets that once served as landing mats for helicopters during the Vietnam War. Often, the ground is much lower on the U.S. side than on the Mexican side, resulting in fractures and other injuries from drops of as high as 18 feet. Still, entire families climb, with smugglers wrapping small children in blankets, throwing them up, and dropping them to parents on the U.S. side.[47] Border Patrol agents complain about having to process and attend to so many children and families, which pulls them away from security duties and a social-work task for which they are not trained.[48]

Law enforcement and non-governmental advocates agreed that smugglers continue to cross with migrants between ports of entry, despite zero tolerance. While many migrants are unaware that improper entry is now being prosecuted, most also have little choice about whether to cross in between the ports of entry or at the port: they go to where their smuggler directs them.

While it would make the most sense for smugglers to bring migrants to the ports of entry, they may lack the freedom to do that. For at least the last 10 years, organized crime (often referred to locally as “the cartel”) has consolidated tight control over who and what crosses the border illegally on the Mexican side.[49] This control was enabled by the post-2006 construction of high fencing in the Yuma and Tucson sectors, which channeled cross-border activity to narrower bottlenecks and chokepoints that criminal groups could monitor more easily. It is now very dangerous to attempt to cross the border without the approval of organized crime, and smugglers must pay a cut to “the cartel” in order to bring migrants across.[50]

The reason why smugglers haven’t adjusted their routes, then, is that they cannot: they can only cross migrants where organized crime allows them to do so. At times, they are instructed to cross in a certain area in order to divert U.S. authorities away from a drug shipment in another area.[51] If a smuggler’s designated territory does not include a port of entry, then migrants must cross as they did before zero tolerance: by climbing a fence or crossing the Rio Grande and seeking out Border Patrol.

In these cases, asylum-seeking families have no real choice but to violate the improper entry statute in order to request protection. In other cases, migrants traveling on their own do not know where to request asylum, only that they want to apply for protection in the United States.[52] For others, after repeated attempts to request asylum at a port of entry, migrants become frustrated and cross in between ports to present themselves to Border Patrol agents to request protection.

One potential consequence of zero tolerance could be an increase in the number of migrants dying in the deserts of Arizona and Texas, particularly of dehydration and exposure because they’ve sought to travel through even more remote wilderness routes to avoid arrest and prosecution. In Arizona, WOLA did not hear accounts that migrants are moving to more dangerous areas. However, the fatalities statistics after this hot summer may tell a different story. Between January and June 4, 2018, before the most intense period of desert heat, the Colibrí Center for Human Rights has counted the discovery of 44 remains of migrants in the Arizona desert, many of them deported Mexican citizens with relatives in the United States.53 In the Rio Grande Valley sector, which has seen the most migrant remains every year since 2014, Chief Padilla reported 57 deaths between October 1, 2017 and the end of May 2018, “and the summer months are still looming.”[54]

Recommendations

Abandon the “zero tolerance” standard. Reserve criminal prosecution for only the most egregious, multiple-recidivist border crossers.

Migrants credibly seeking protection should never be prosecuted for improper entry.

Never implement a policy that deliberately increases migrants’ misery—and especially not one that harms children—as a “deterrent” to potential future migrants. Recognize that people fleeing for their lives are unlikely to be deterred by detention in the United States.

If they are criminally charged, migrants who fear returning to their countries must have a clear opportunity to express that fear and seek asylum. U.S. agents should not be permitted to pressure asylum-seekers to accept voluntary return to their country as a way to be released from detention.

Increase inter-agency cooperation to avoid loss of migrants’ belongings during transfers and in the deportation process. Continue to involve consular authorities in ensuring that migrants who have already been deported have their belongings returned to them.

If married migrants are prosecuted, ensure that the separated spouses know each other’s whereabouts while in detention and when they are being repatriated to Mexico or Central America.

Border Patrol should consider employing child welfare specialists and others who are trained in assisting families for the processing of children and families. This would free up more agents for work in the field.

Continue to expand search-and-rescue efforts for migrants in distress in U.S. borderlands, especially during summer months. Increase vigilance, the use of rescue beacons, and the availability of water stations, along routes where large concentrations of remains are found, especially around checkpoints. Border Patrol should not destroy or tamper with water left by humanitarian organizations.